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An overseer was committed until he should give in and verify his accounts. He became a bankrupt before the expiration of his year, with a balance of the parish money in his hands. He accounted for the balance under his commission, and afterwards obtained his certificate, which was held to entitle him to be discharged out of custody upon verifying his account: for the money in his hands at the time of his bankruptcy was debitum in presenti, although he might be only accountable for it in futuro. (1)
If an overseer becomes bankrupt subsequent to the ex- 4th, If bankpiration of his year, and before payment of any balance due rupt after its
. from him, the parish may prove the amount under his commission. And where the object of an overseer's commitment is only to enforce payment, he seems protected from such imprisonment, because the bankrupt laws exempt him from arrest by any process used to compel the discharge of a debt. (2) persons who have or shall give credit to any person or persons who become bankrupts, upon good and valuable consideration bona fide, for any money whatsoever, which is or shall not be due or payable at or before the time of such persons becoming bankrupt, shall be entitled to, and receive proportional dividends of the bankrupt's estate equally with his or their other creditors, deducting only a rebate of interest for what they receive at the rate of five per cent.
(1) Rex v. Tucker, 5 M. & S. 508.
(2) The petitioner absconded, to avoid paying money, reported to be in his hands as assignee, under a commission of bankruptcy, and which under an award made, and rule of court, he was ordered to pay. Upon that act of bankruptcy a commission issued against him. He surrendered under the commission; and as he was going out of Guildhall from his examination, he was arrested under an attachment for the contempt. The petitioner prayed that he might be discharged from custody, under 5 Geo. II. c. 30. 5. 5. The chancellor thought this merely an attachment to enforce the payment of money, and discharged the bankrupt. Exparte Parker, 3 Ves. jun. 554. So where one was in custody for non-payment of costs, taxed in pursuance of a recognizance, entered into by him, on his removal of an indictment from quarter sessions, under 5 & 6 W.IJI. c. 11. 5.3. B.R. held, that he might be discharged under the lords' act, for, although a criminal proceeding in form, it in substance of a civil nature, and an execution for a debt to the party. Rex v. Stokes, Cowp. 136. But quære, whether the justices have not power to commit, for refusing to deliver in and verify an account?
17 Geo.II. c. 38. s.3. If overseer
It is provided by 17 Geo. II. c. 38. s.3. that if an over
seer dies before the expiration of his office, his executors or dies, priority administrators shall within forty days after his decease, deover other
liver over all things concerning his office to some churchwarden or other of the place, and shall pay out of the assets left by such overseer all sums of money remaining due, which he received by virtue of his said office, before any of his other debts are paid and satisfied.
If justices decline to receive and proceed upon a comwhere justices refuse to en- plaint against an overseer, for refusing to pay over the baforce payment lance in his hands, the court of king's bench will grant a of the balance.
mandamus to compel them.(1)
Return of a Mandamus to the justices to grant a warrant for levying consent by
thirty pounds, being the balance of the account of the last
overseers in their hands. They returned, that there was should keep a such a balance, but that the vestry had ordered them (i. e. purposes not
the overseers) to retain it, and employ an attorney to sue authorized by, for some charity money, and get it laid out for the benefit
is insufficient. of the poor; that one G. was so employed, and the balance
exhausted in fees, and that the overseers had engaged to pay G.; et eâ de causa, they had refused to grant the warrant. Per Curiam. There must go a peremptory mandamus; for the 43 Eliz. c. 2. s. 2. says, the balance shall be paid over to the new overseers, under a penalty, and it is not in the power of the vestry to dispense with the statute. (2)
(1) See Rex v. Carter, 4 Term Rep. 246. post. 470, (2). Pascoe, 2 M. & S. 343. ante, 453. post.
(2) Rex v. Justices of Somersetshire, 2 Str. 992. Cunn. 105.S.C. As to the sessions' power to order payment of the balance, see post.
Of Money due to Parish Officers during the Continuance or
at the Expiration of their Office.
It has been already seen, that if a balance is in the over- Balance due to
old overseers, seers' favour, their successors cannot repay them (1) except recoverable in cases provided for by 17 Geo. II. c. 38., and by 41 Geo. III. only under
17 Geo.II. c.23. s. 9. (2)
41 Geo. III. In a case prior to these statutes, where it appeared that c.23. an overseer had omitted to take credit in his account for Error against
an overseer in sum of money justly expended by him, it was held, that the his accounts, sessions had no authority, upon appeal, to order his suc- not to be recti
fied by sessions cessors to pay the money to his executor, although the
after settlevestry consented (3); for otherwise, a man who came into ment, though
with the vesthe parish after the overseer's year, would be charged to try's consent. the expence of that preceding year, while he had been contributing to the maintenance of other poor in another parish. (4)
But where one overseer is money out of pocket, and one But he might of his co-officers has received a sufficiency to reimburse him, be reimbursed
from balance in an order may be made upon such officer. (5)
his co-officer's hand, or if paid
tohissuccessor. There are four adjacent towns within the parish of Ban- When overbury, and there is an overseer within each town, and an seers of dis. overseer also within the borough ; they all join in one ac- parish are to
tricts within a count, and there is but one rate made for all the parish, but receive from the overseers of each particular town collect and
each other. the
pay money within such town. A
person, who is tenant of lands
(1) See 'Tawney's case, 2 Ld. Raym. 1011. Rex v. Overseers of St. Peter's the Great, Chichester, fol. 33. But see the order as recited. i Const. 510. Pl. 351, and ante, Vol. I. 68. et seq.
(2) Ante, Vol. I. 67. et seq.
in one of these towns, lives in the borough, and is assessed by the overseer of the borough for lands within the town, and paid to the overseer of the borough, and the like is done in the other towns; so that the overseer of the borough had a surplusage for the poor within the borough, and the overseers of the towns wanted
within the towns, though the poor within the towns were less than the poor within the borough. And upon this, the justices ordered that there should be distribution made; and this order, being removed, was confirmed, this being held not within the statute 13 & 14 Car. II. c. 12.(1)
for the poor
Of compelling the Delivery of Books and other parochial
Mandamus to The books of the poor rates and other public books and compel delivery of parish papers belonging to the parish) (2), ought to be kept so as books, &c. all the parishioners may have access to them; and the over
seers and churchwardens for the time being ought to have the custody thereof. A compulsory and summary proceeding, to oblige the old overseers to deliver them up to their successors is given by 17Geo. II. c. 38. (3) It has been also held, that the court may grant a writ of mandamus
to compel them. (4) .
By 50 Geo. III. c. 49. s. 1. If they or any of them refuse or neglect to deliver over to their successors within ten days from the signing and attesting their accounts, any goods, chattels, or other things, which on the examination and allowance of their accounts (under that act) shall appear to be remaining in their hands, any two or more justices may commit him, her, or them to the common
(1) Case of the borough of Banbury, Skin. 258.
gaol until they shall have delivered over such goods, chattels, and other things. (1)
Of appealing against Overseers' Accounts.
If the succeeding overseers are dissatisfied with the ac- Succeeding count given by their predecessors, and allowed by the ma- all aggrieved,
overseers, and gistrates, they may appeal on behalf of the parish to the may appeal. quarter sessions. The same remedy is given to all other persons having objections to their accounts, or finding themselves aggrieved by any neglect, or thing done, or omitted, by the churchwardens, overseers, and justices. (2)
It is not sufficient to state in the notice of appeal the Notice of items of account objected to; the causes and grounds of the appeal. objections should be specified. (3)
Upon appeal by I. T., a rated inhabitant, against the accounts of the overseers of the township of S.; the sessions in their case for the Court's opinion stated that the appellant's solicitor gave the following notice : As solicitor of I. T., &c. I do hereby give you notice, that at the last general quarter sessions, for &c. the said I. T. entered an appeal against the accounts of I. S. and T. L., overseers of the poor of the said township, &c., and that appellant would object to certain items which were specified in the notice, and that it would be insisted on upon the hearing that all of them should be struck out and disallowed, but it omitted
(1) See Groome v. Forrester, ante, 445. (2).
(2) Originally by 43 Eliz. c. 2. s. 6., afterwards by 17 Geo. II. c. 38. s. 4. The power of appealing against a poor rate, being given by the same clauses, as allow it against overseers' accounts, the subject will be explained more minutely, in treating of appeals against rates, &c. The 41 G.III. c. 23. 5. 4. likewise requires that there shall be a similar notice of appeal in this case, as in appeals against rates for the poor's relief, for which see also post, chap. xxxvii.
(3) Rex v. Mayall, 3 D.&R. 388.